Haradhan Chandra Deb and Others vs Dulal Deb and Others

S.C. Das, J.—1. This second appeal is directed against judgment and decree dated 29.09.2010 passed by learned Additional District Judge, Sonamura, West Tripura in Title Appeal No. 3 of 2010, whereunder the learned Additional District Judge set aside the judgment and decree dated 19.05.2010 passed by learned Civil Judge, Junior Division, Sonamura, in T.S. (P) No. 2 of 2009.

Heard learned counsel, Mr. A. De for the appellants and learned counsel, Mr. B. Nandi Majumder for the respondent Nos. 1 to 4. No representation on behalf of proforma respondent Nos. 5 and 6.

The second appeal has been admitted for hearing on the following substantial questions of law:--

"1. Whether the judgment and decree passed by the First Appellate Court suffers from perversity?

Whether there was an amicable settlement by way of family arrangement already effected between the parties"

Respondent Nos. 1 to 4 as plaintiffs instituted T.S.(P) No. 2 of 2009 in the Court of Civil Judge, Junior Division, Sonamura, West Tripura, seeking partition of the suit land, described in the schedule of the plaint, between the plaintiffs and the principal defendant Nos. 1, 2 & 3 i.e. the appellants herein.

Plaintiffs inter alia contended that Rajkumar Deb was the owner of the suit land, described in the schedule of the plaint, who died on 01.04.1992, leaving behind the plaintiffs and the principal defendants as his legal heirs. The plaintiffs and the principal defendants were entitled to get 1/7 share each in the suit land and the plaintiffs demanded partition but the defendants refused to make any partition and, hence, the plaintiffs instituted the suit seeking decree of partition.

Principal defendants contested the suit by fling written statement inter alia contending that there was an oral partition between the plaintiffs and the principal defendants and as per oral partition all were possessing their particular share and that some of the shareholders sold out some portions of their land in the meantime and that the plaintiffs instituted the suit with a view to grab further land from the shares of the defendants.

The Trial Court framed five issues namely:--

"(1) Whether the suit is maintainable in its present form and nature.

(ii) Whether ''A'' schedule land is the ancestor''s property of the plaintiffs and the defendants number 1, 2 and 3.

(iii) Whether the suit land is already partitioned among the plaintiffs and the defendants.

(iv) Whether the plaintiffs are entitled to be decree as prayed for.

(v) Whether the plaintiffs are entitled to get any other relief/reliefs."

In course of trial plaintiff No. 1 examined himself as P.W-1 and also examined another witness as P.W-2, Litan Dey. In support of their case the plaintiffs also proved 3 documents marked as:--

"Exhibit- 1:-- Khatian No. 832/1

Exhibit-2:--Khatian No. 878.

Exhibit-3:--Survival certificate bearing No. 11/F. 36(1) DGL/SDO/SNM/88 dated 23.15.1992."

Defendant No. 3 examined himself as D.W.-1 and proved one sale deed marked as Exhibit-A, namely:--

"Exhibit- A(Series):-- Certified copies of deed No. 1229 dated 19.08.2008."

The Trial Court decided the material issues against the plaintiffs and dismissed the suit by judgment & decree dated 19.05.2010.

Aggrieved, the plaintiffs preferred T.A. No. 3 of 2010 and the Appellate Court by impugned Judgment & decree dated 29.09.2010 allowed the appeal, set aside the judgment and decree passed by the Trial Court and decreed the suit.

Learned counsel, Mr. De appearing for the defendant-appellants submitted that the plaintiffs and the principal defendants are all legal heirs of late Rajkumar Deb. There was an oral partition between them. After such oral partition the plaintiffs as well as the defendants sold out a part of land from their respective share to different purchasers but those purchasers were not made a party in the suit and, hence, the partition suit itself was bad for non-joinder of necessary parties. He has also submitted that the decree passed by the Appellate Court is not executable since the plaintiffs as well as the defendants sold out certain part of the suit land whereas the sold out land was not excluded from the suit land. The Appellate Court only entertained exclusion of 0.60 acres of land which plaintiff No. 2 sold out to one Sita Paul, but there were other sale deeds also which the defendants collected subsequently and annexed with the memo of appeal before this Court. He has submitted that since Judgment and decree is not executable it should be set aside.

Learned counsel, Mr. Nandi Majumder, on the other hand, submitted that the Trial Court wrongly dismissed the suit. The Appellate Court rightly considered the facts, circumstances and the evidence on record and decreed the suit. The defendants cannot now bring new fact and say that there were some other necessary parties and since those parties were not included in the suit the decree is not executable.

It is an admitted position that Rajkumar Deb was the original owner of the suit land. He died on 01.04.1992 leaving behind the plaintiffs and the principal defendants as his legal heirs who became owners of the suit land as described in the schedule of the plaint, in equal share. So, the plaintiffs being the legal heirs of the deceased Rajkumar Deb were entitled to get 1/7 share each of the suit land.

The defendants contested the suit by fling written statement and stated inter alia that there was an amicable partition made orally and that some of the plaintiffs already sold some plot of land of their shares. But nothing was specified in written statement as to which of the plaintiffs sold out which portion of the land to which purchasers. No issue was also framed on the point of nonjoinder of parties. The defendants in their evidence proved a sale deed executed by plaintiff No. 2 in favour of one Sita Paul and the plaintiffs before the Appellate Court admitted the sale by plaintiff No. 2. The Appellate Court therefore, directed that the sold out portion of the plaintiff No. 2 shall be excluded from her share. The defendants failed to prove that there was an oral partition or a family arrangement. While the defendants raised the point that there was an amicable partition orally between the legal heirs it was their duty to prove it. Defendant No. 3 examined himself as D.W-1 and in his cross-examination he clearly admitted that after the death of his father, there was no partition by way of partition deed or by partition suit. There is no other evidence to show as to when the oral partition was made and how. There is also nothing to show by way of such oral partition who has got which part of the suit land. The Appellate Court, therefore, in my considered opinion, rightly arrived at a finding that there was no oral partition as contended by the defendants in their written statement.

No doubt Sita Paul was not made a party but that was not raised before the Trial Court. The Appellate Court directed that the portion of the land which was sold by plaintiff No. 2 to Sita Paul should be excluded from her share of the suit land. Learned counsel, Mr. De has argued that there were some other sale deeds also but neither those sale deeds were not mentioned in the pleadings nor any evidence was adduced. So, I find no fault in the Appellate Judgment passed by learned Additional District Judge.

The appeal, therefore, is found to be devoid of any merit and hence, stands dismissed.

Parties to bear their own costs.

Send back the LC records along with a copy of this Judgment.